On Point: H. Modification/Review

State v. Richard Wade Shirley, 2012AP263-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

Denial of fair trial – restraint of defendant during trial

Defendant forfeited claim that he was deprived of a fair trial because at least one juror saw he was shackled in the court room: “Not only does the record show that Shirley failed to strike the one juror that the record demonstrates saw the restraints,

State v. John Doe, 2012AP414-CR, District 1, 1/23/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly exercised its discretion in denying the defendant’s motion for sentence modification based on his assistance to law enforcement. The circuit court considered the factors established by State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, for determining when post-sentencing assistance to law enforcement is a new factor,

State v. Jack Minniecheske, 2012AP1133, District 3, 1/23/13; court of appeals decision (1-judge, not eligible for publication); case activity

 Because Wis. Stat.  § 950.04(1v)(m) gives victims the right to provide statements at sentencing, the circuit court properly considered a victim impact statement despite defendant’s objection to it as “frivolous” and his claim the victim stole his property. “Moreover, given Minniecheske’s sentence, a fine and costs, there is no indication in the record that the court sentenced Minniecheske more harshly because of the allegations in the victim impact statement.” (¶8).

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.

State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12

court of appeals decision (not recommended for publication); case activity

Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” 

on review of published decision; case activity

Issues (composed by On Point): 

1. Whether the evidence is sufficient to sustain conviction for conspiracy-theft by fraud, in that: no conspirator expressly made a false representation; and in any event, Steffes joined the conspiracy after it had already been set in motion.

2. Whether the evidence is sufficient to sustain conviction for a felony, in that the evidence failed to establish theft of at least $2,500.

on review of published decision; case activity

Issue (composed by on Point) 

Whether sentencing reliance on inaccurate information (here, misapprehension of mandatory minimum incarceration) is structural error.

Travis pleaded guilty to an offense that all concerned (defense, prosecution, sentencing court) wrongly thought carried a 5-year mandatory minimum (largely due to confusion about the particular offense Travis pleaded to). The court of appeals clarified that the offense of conviction in fact had no mandatory minimum.

State v. Alvin C. Harris, 2012AP518-CR, District 2, 9/12/12

court of appeals decision (1-judge, ineligible for publication); case activity

Plea-Withdrawal 

Harris failed to make a prima facie showing that his plea colloquy was defective, therefore his motion to withdraw plea was properly denied without an evidentiary hearing:

¶7        Here, Harris’s motion alleged that his plea was not entered knowingly, intelligently, and voluntarily because of a defect in the plea colloquy.  

State v. Lavon J. Ash, Sr., 2012AP381-CR, District 2, 8/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Ash was sentenced to concurrent terms of one-year initial confinement, one-year extended supervision on two misdemeanor counts, a sentence structure he successfully challenges. Incompatible statutory mandates lie at the heart of the problem. In the first instance, § 973.01(1)  requires bifurcated misdemeanor sentences, which simply isn’t possible for unenhanced misdemeanors: a bifurcated sentence must be served in prison,

State v. Mark M. Benson, 2012 WI App 101 (recommended for publication); case activity

Equal Protection – Homicide of Unborn Child by Intoxicated Use of Motor Vehicle, §§ 939.75(2)(b)3, 940.09(1)(c) 

Section § 939.75(2)(b)3 exempts from criminal liability any “act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.”